Sunny S/o Mathai v. Sheeba D/o Sebastian and Nissymol Sunny (minor) represented by mother Sheeba

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 20[TH] DAY OF OCTOBER 2023 / 28TH ASWINA, 1945 ``` ## **`RPFC NO. 51 OF 2016`** ## **`AGAINST THE ORDER/JUDGMENT MC 65/2014 OF FAMILY COURT, THODUPUZHA REVISION PETITIONER/S:`** ``` SUNNY S/O.MATHAI, OLIKKAL HOUSE, KUVAKKANDAM P.O., VELLIYAMATTOM VILLAGE, THODUPUZHA. ``` ``` BY ADV SRI.UNNIKRISHNAN.V.ALAPATT ``` ## **`RESPONDENT/S:`** ``` 1SHEEBA D/O.SEBASTIAN, MALIKKUDIYIL HOUSE, ANJARI P.O., KUDALIPAARA KARA, ALAKKODU VILLAGE, THODUPUZHA-685 585. 2NISSYMOL SUNNY MINOR REPRESENTED BY MOTHER AND GUARDIAN SHEEBA, MALIKKUDIYIL HOUSE, ANJARI P.O., THODPUZHA-685 585. BY ADVS. SMT.ANN THUSHARA ABRAHAM SRI.DOMSON J.VATTAKUZHY SRI.MATHEW JOHN K ``` ``` THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 20.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 RP(FC)No.51 of 2016 ## **C. S. DIAS, J.** **------------------------RP(FC)No.51 of 2016 ------------------------Dated this the 20[th] day of October, 2023 ORDER** The revision petition is filed challenging the order passed by the Family Court, Thodupuzha, in M.C 65/2014. The revision petitioner was the respondent and the respondents were the petitioners in the above petition. For the sake of convenience, the parties are referred to as per their status before the Family Court. 2. The petitioners had filed the petition against the respondent for a monthly maintenance allowance of Rs.4,000/- and Rs.3,000/-, respectively. It was their case that, the first petitioner is the wife of the respondent and the second petitioner is the daughter 3 RP(FC)No.51 of 2016 born in their wedlock. The respondent was constantly harassing the first petitioner demanding more dowry. On an earlier occasion, the respondent drew away the first petitioner from the matrimonial home. She had then filed M.C 8/2009 before the Family Court for an order of maintenance. The dispute between the parties was settled, the petition was withdrawn and the parties resumed cohabitation. Yet again, the respondent started to ill-treat the first petitioner. The first petitioner then lodged a complaint against the respondent and his relatives before the Police complaining that they had committed the offence under Section 498A of the Indian Penal Code ( in short ' I.P.C). The respondent is a Mason by profession and is getting a monthly income of Rs.20,000/-. He also has landed property and is 4 RP(FC)No.51 of 2016 getting an agricultural monthly income of Rs.8,000/-. The petitioners have no sufficient means to maintain themselves. The second petitioner is studying in the sixth standard. The respondent has refused to maintain the petitioners. Hence, the petition. 3. The respondent resisted the petition by filing a written objection, inter alia, contending that the first petitioner left the matrimonial home without any sufficient reason or cause. The first petitioner is not interested to live with the respondent. Even though the earlier maintenance case was withdrawn and the parties resumed cohabitation, the first petitioner went away to her parental home. Thereafter, she filed a false complaint before the Police alleging that the respondent, his father and sister to have committed the 5 RP(FC)No.51 of 2016 offence under Sec.498A r/w Sec.34 of the I.P.C. The Police filed their final report before the Chief Judicial Magistrate Court, Thodupuzha, and the case was numbered as CC 48/2010. However, the accused were acquitted. The first petitioner is living in her matrimonial home without any sufficient cause. Therefore, the respondent is not liable to maintain the petitioners. The respondent does not have any permanent job or income as alleged in the petition. The petition is only liable to be dismissed. 4. In the trial, the first petitioner was examined as PW1 and the respondent and a witness were examined as RWs 1 and 2. 5. The Family Court, after appreciating the pleadings and materials placed on record, by the 6 RP(FC)No.51 of 2016 impugned order, partly allowed the petition by directing the respondent to pay the petitioners monthly maintenance allowance at the rate of Rs.3,000/- and Rs.2,000/- respectively, from the date of order. 6. It is aggrieved by the said order that the present revision petition is filed. 7. Heard; Sri.Unnikrishnan V.Alappat, the learned counsel appearing for the revision petitioner and Sri.Domson.J Vattakuzhy, the learned counsel appearing for the respondents. 8. Is there or any illegality, impropriety irregularity in the impugned order passed by the Family Court. 7 RP(FC)No.51 of 2016 9. The materials placed on record substantiate that the first petitioner was married to the respondent on 9.10.2003 as per Christian religious rites and customs. The second petitioner was born in the wedlock between the parties on 3.9.2004. Admittedly, the respondent does not dispute the marriage or the paternity of the second petitioner. 10. The cardinal ground of attack in the revision petition is that, the first petitioner desserted the respondent without any sufficient cause or reason. 11. A reading of the records reveal that the first petitioner had earlier filed MC No.8/2009 for an order of maintenance. Subsequently, the parties effected a rapprochement and they resumed cohabitation. But 8 RP(FC)No.51 of 2016 again, the first petitioner left the matrimonial home. It is also evident that the first petitioner had lodged a complaint before the Police and the respondent and his relatives were charge-sheeted for the offence under Sec.498A of the Indian Penal Code. Nonetheless, the respondent and his relatives were acquitted by the jurisdictional Magistrate. 12. Even though the respondent has alleged that the first petitioner is living separately without any sufficient cause and he is ready to live with her, admittedly, he has not taken any steps to secure a decree for restitution of conjugal rights. 13. Going by the materials placed on record, particularly the fact that the first petitioner had earlier 9 RP(FC)No.51 of 2016 left the matrimonial home and a maintenance case was filed and, thereafter a reconciliation was effected, but again, the first petitioner was constrained to leave the matrimonial home and file a criminal complaint against the respondent. 14. The fact remains that the matrimonial relationship is strained and the first petitioner cannot be expected to live in the matrimonial home. 15. The assertion that the respondent and his relatives were acquitted in the criminal case does not have much relevance because the acquittal of an accused in a criminal case is based on the principles that the case has to be proved beyond reasonable doubt. It is not the said standard that is to be adopted in a 10 RP(FC)No.51 of 2016 petition filed under Sec.125 of the Code of Criminal Procedure, which is to prevent destitution and vagrancy. 16. The Family Court, after a meticulous appreciation of the pleadings and materials placed on record, has concluded that the first petitioner is living separately from the respondent on justifiable grounds. 17. I do not find any valid ground to take a contrary view in a revision petition filed under Sec.19(4) of the Family Courts Act. Consequently, I confirm the finding of the Family Court that the first petitioner is living separately from the respondent for sufficient reasons . 11 RP(FC)No.51 of 2016 18. The respondent has not let in any evidence to prove that the first petitioner is having any means of sustenance. On the contrary, the first petitioner has stated that the respondent is a Mason by profession and is getting a monthly income of Rs.20,000/- and an agricultural income of Rs.8,000/- per month. 19. The Family Court has held that the petitioners are entitled to monthly maintenance @ Rs.3,000/- and Rs.2,000/-, respectively, which I find to be reasonable and justifiable. 20. It is trite that an able bodied person is bound to maintain his wife and child [read **Anju Garg vs. Deepak Kumar Garg** (2022 LiveLaw SC 805) ]. 21. On a re-consideration of the pleadings and materials on record, I uphold the impugned order 12 RP(FC)No.51 of 2016 passed by the Family Court and state that the order does not suffer from any illegality, irregularity or impropriety warranting interference by this Court. The revision petition is devoid of any merits and is resultantly dismissed. The Registry is directed to forward a copy of this order to the Family Court for further proceedings. sd/- sks/20.10.23 C.S.DIAS, JUDGE